A separate pending case does not, by itself, make you ineligible. Penal Code 1000 lists four eligibility conditions for diversion on a qualifying drug charge, and an open case is not one of them. The other case can still matter later: the judge decides whether to grant diversion after considering relevant information, and a felony conviction, or a conviction for an offense reflecting a propensity for violence, while you are in the program can lead to a motion to end your diversion.

The four eligibility conditions

Penal Code section 1000 applies to specific qualifying offenses, including simple possession under Health and Safety Code sections 11350 and 11377, when it appears to the prosecuting attorney that all of the following apply:

  • No conviction for a controlled-substance offense, other than the qualifying offenses themselves, within the five years before the alleged drug offense.
  • The charged offense did not involve “a crime of violence or threatened violence.”
  • No evidence of “a contemporaneous violation relating to narcotics or restricted dangerous drugs” other than the qualifying offenses.
  • No felony conviction within the five years before the alleged drug offense.

Those are the only eligibility conditions in the statute. A pending charge for something else, such as a theft or DUI case that has not been resolved, is not on the list.

What “contemporaneous violation” does and does not mean

The third condition is easy to misread as covering any pending case. It is narrower: it concerns evidence of another narcotics or restricted-drug violation, beyond the listed diversion offenses, occurring at the same time as the charged offense. A pending case about different conduct, such as a theft or DUI, does not fit it. If the other case is itself a drug case arising from the same time or events, ask your lawyer whether the prosecutor could rely on it under this condition.

How eligibility is decided, and what happens if you are found ineligible

The prosecuting attorney reviews the file to decide whether the four conditions apply. Either way, the prosecutor must file a written declaration or state on the record the grounds for the decision, and make that information available to you and your lawyer. If you are found ineligible, the statute says “the sole remedy of a defendant who is found ineligible for pretrial diversion is a postconviction appeal” (Penal Code section 1000). That appeal comes only after a conviction.

Eligibility is not the final step. Diversion requires you to plead not guilty and waive the right to a speedy trial, a speedy preliminary hearing, and a jury trial where applicable (Penal Code section 1000.1). The court then holds a hearing and, after considering any information relevant to its decision, decides whether you should be granted diversion (Penal Code section 1000.2).

When the other case can affect your diversion

The two lookback conditions count convictions within the five years before the date of the alleged drug offense. As the statute is written, a conviction entered later in the other case falls outside that window, so it does not make you ineligible under those conditions. The other case can matter in two different ways:

  • At the hearing on whether to grant diversion, the court considers any information relevant to its decision. The statute neither lists a pending case as a reason to deny diversion nor excludes it from what the court may consider.
  • After diversion is granted, if you are convicted of a felony, or of an offense that reflects a propensity for violence, the prosecutor, the probation department, or the court may move to terminate your diversion. If the court finds that conviction after a hearing, your drug case returns to ordinary proceedings (Penal Code section 1000.3).

So if the other case could end in a felony conviction, or a conviction for an offense reflecting a propensity for violence, how and when it ends can affect whether you keep diversion. Decisions in that case belong with the lawyer handling it.

Program details and immigration questions

Program requirements, completion, and dismissal are covered on the firm’s PC 1000 drug diversion page. If you are not a U.S. citizen, get immigration advice before making decisions in either case. Other routes, such as Proposition 36 or drug court, are discussed on the firm’s drug diversion programs page.

If you are weighing PC 1000 diversion while another case is still open, the order in which the two cases resolve can matter. Call (800) 755-5174 to go over both cases with the Law Offices of David S. Chesley before any plea is entered.